The end of history? The future of regulation in England

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Former Vice-Chancellor

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With the passing of the Higher Education and Research Act (HERA) and the arrival of the Office for Students (OfS), the regulatory arrangements for universities and colleges in England seem more firmly established than for some time. After a number of years of continuous consultation and proposed change, the HERA/OfS configuration hints at durability and consolidation. But, as always, contestation and critique will challenge notions of a permanent institutional settlement for the sector. What key features are likely to characterise higher education regulation by the end of the next decade?

It will not be all about the OfS

Despite the consolidated power of the OfS, higher education regulation in 2030 will still be best described as a ‘regime’. That is, a range of actors will be involved. Some will be governmental. Apart from the OfS, ministries such as DfE, BIES and the Home Office (presumably one or more retitled by then), and broader trans-sector regulatory agencies, such as the Competition and Markets Authority and the Health and Safety Executive, will remain curious about the sector. But a variety of non-governmental ‘stakeholders’ also will be highly vocal, seeking to exercise various forms of ‘public control’ over institutions, often promoting distinctive models of how they should be governed. These include media, students, employers, governors, staff representatives, think tanks, and so on. Coordination or accommodation of these entities will be difficult; the OfS will be living with cacophony and modulating periodic levels of unruliness.

Quality is multidimensional

By 2030, the century-long idea that quality assessment should not be tied too closely to funding issues – to preserve independence of judgement – will be severely debilitated, if not entirely sundered. The OfS will have reinforced the view that quality issues cannot easily or helpfully be sheared away from financial, reputation, market and other considerations. Protection of the student as a consumer will have established a broader regulatory turn in quality assurance in which internal and external risk management performs a key governance task over all aspects of an institution’s operation. Consequently, governing bodies will have become more powerful.

Universities will be more firmly embedded as a result within a wider ‘public services’ sector. If ever higher education was special – at least to itself – as a sector (‘sui generis’), with rather particular and self-regarding practices of governance, that will have faded. Governments will now unabashedly regard universities and colleges as little different to entities in other sectors. A broad and sometimes quite specific accountability to the public interest is expected.

What will have happened to the QAA?

While the OfS will have become a prudential, compliance-seeking body, the Designated QAA focuses on guidance, enhancement, and education. It will be a transposer of good practices and also an available consultant (for an additional ‘non-statutory’ fee). But the row over where to draw the appropriate line between designated services for all in return for an annual subscription, and the provision of additional, fee-paying consultancy services for a smaller group, continues to rumble. Rather like the aftermath of the ‘big bang’ in financial services regulation in the City of London in the 1980s, when the leading audit companies moved rapidly into consultancy activity, the QAA (and others) will be seeking to transparently juggle the two functions.

Risk artefacts will be everywhere

After a number of years practicing risk-based regulation – scoping the sector for possible threats to standards, probity, and solvency (rather than simply checking for rule and procedural compliance) – the OfS will be firefighting criticism that it did not predict the demise and scandals of a number of registered ‘approved’ providers. As a result, it has become as much concerned with risk to itself, in the face of periodic political and media wrath, as with risk found in institutions. It continues to respond that to anticipate the future with any precision where human beings are concerned is a hopeless endeavour. Rather, it continues to aver, occasionally having ‘accidents’ in the sector should be regarded as normal.

Yet universities and colleges by now will be taking no chances. They have come to know, too, that ‘risk’ is a contingent or future probability and is not real until it crystallizes. Consequently, a mushrooming of risk artefacts has occurred – risk maps, risk registers, and risk dashboards – by institutions and regulators to make risk ‘real’ in the here and now. This is thought to make risk more controllable. But such devices seem at variance with the perceptions of risk on the ‘front line’, in faculties and administrative departments, which are less sanitised and parsed than the versions found in executive suites.

By 2030, the regulatory talk is less on risk as such (at least in terms of anticipation), and more on institutional ‘resilience’ and ‘capacity building’ to cope with the unexpected (the unexpected having become expected). The OfS by now is regulating more by organisational ‘responsiveness’ than by risk – how willing are those currently not in compliance to learn and to take steps to comply?

Behaviour modification rather than sanctions is the sought-for outcome. Only those entities too recalcitrant to change their ways will receive a big stick rather than soft words. Rather than extensively data-scoping the sector for risk, the OfS, as it gains longevity, will learn from practice on the ground, often tacitly. The probabilities of risk events will be as inductively granulated as metrically deduced from on high.

Most risk in the sector will be of the political kind and aimed at the OfS by a variety of stakeholders. Managing risk to itself, as much as any risk found in the sector, will be by then a continuing challenge.

2 responses to “The end of history? The future of regulation in England”

The regulatory framework in the past and future could consider a gap analysis on the impact on students. Heavy reliance on quantitative data or qualitative assessments have its own disadvantages. Would there be an assessment on where the previous regulatory framework failed and why do we need to replace it with something new?